National Credit Union Administration Board v. RBS Securities, Inc. et al

Filing 573

ORDER denying James Whittemore's motion to quash deposition subpoena. Signed by Magistrate Judge James P. O'Hara on 6/16/2015. (ah)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NATIONAL CREDIT UNION ADMINISTRATION
:
:
BOARD, etc.,
Plaintiff,
:
:
-v:
:
MORGAN STANLEY & CO., et al.,
:
Defendants. :
:
And other NCUA Actions.
:
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UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
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NATIONAL CREDIT UNION ADMINISTRATION
:
BOARD, etc.,
:
Plaintiff,
:
-v:
:
RBS SECURITIES, INC., f/k/a GREENWICH :
CAPITAL MARKETS, INC., et al.,
:
:
Defendants.
:
:
And other NCUA Actions.
:
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13cv6705
13cv6719
13cv6721
13cv6726
13cv6727
13cv6731
13cv6736

(DLC)
(DLC)
(DLC)
(DLC)
(DLC)
(DLC)
(DLC)

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: ______________
6/16/15
/ /

11cv2340
11cv2649
12cv2591
12cv2631
12cv2648
13cv2418

(JWL)
(JWL)
(JWL)
(JWL)
(JWL)
(JWL)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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NATIONAL CREDIT UNION ADMINISTRATION
:
BOARD, etc.,
:
Plaintiff,
:
-v:
:
11cv5887 (GW)
RBS SECURITIES, INC., f/k/a GREENWICH :
11cv6521 (GW)
CAPITAL MARKETS, INC., et al.,
:
:
Defendants. :
ORDER
:
And other NCUA Actions.
:
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HON. DENISE COTE, HON. JOHN W. LUNGSTRUM, and HON. GEORGE H. WU,
District Judges; and HON. JAMES P. O’HARA, Magistrate Judge:
On May 11, 2015, former RBS employee James Whittemore
(“Whittemore”) filed in the Northern District of Illinois a
motion to quash a deposition subpoena.

In the alternative,

Whittemore sought a protective order requiring prior notice of
the “topics” on which NCUA intends to examine him, and a
limitation of topics to be discussed at the deposition to those
not already covered in his prior testimony.
On May 20, our Courts issued an Order requiring the parties
in our Coordinated Litigation to advise the court in the
Northern District of Illinois of our willingness to accept a
transfer of Whittemore’s motion.

On June 4, that court

transferred the motion pursuant to Federal Rule of Civil
Procedure 45(f), and on June 10, our Courts accepted the
transfer as one made pursuant to § 2 of the Master Discovery
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Protocol (“MDP”).

NCUA submitted its opposition to Whittemore’s

motion on June 11, and Whittemore submitted his reply on June
15.
NCUA has sued RBS in each of our districts in connection
with thirty-five RMBS.

Whittemore was a Senior Vice President

and Chief Underwriter at RBS at the time the securities were
sold.

Since 2011, he has testified four times over the course

of five days in unrelated RMBS litigation and government
investigations.

RBS has provided the transcripts of those

depositions to NCUA pursuant to § 10(d) of the MDP.

Most of the

thirty-five RMBS at issue in our Coordinated Actions were not at
issue in the cases and investigations in which Whittemore was
previously deposed.
Whittemore argues first that the deposition would be
unnecessarily duplicative, cumulative, and unduly burdensome.
Whittemore has not shown that a deposition would impose an undue
burden, would be cumulative or that his testimony here would be
unnecessary.

Nonetheless, to assist Whittemore in preparing for

this fifth deposition, we require NCUA to provide him with
advance notice of the topics on which it intends to examine him.
Whittemore points out that § 10(d) of the MDP requires that
NCUA “endeavor to not subject witnesses to the same questioning
for which a transcript was previously provided.”

As our Order

of May 13, 2015 explains, § 10(d) is not a “limitation ordered
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by the court” for purposes of Federal Rule of Civil Procedure
30(c)(2).
Accordingly, it is hereby
ORDERED that Whittemore’s motion to quash is denied.
IT IS FURTHER ORDERED that at least five business days in
advance of the deposition NCUA shall provide Whittemore with
written notice of the topics upon which it will question him at
his deposition.

His motion for a protective order is otherwise

denied.
IT IS FURTHER ORDERED that the deposition shall occur prior
to July 17, 2015.

Any dispute regard the scheduling of the

deposition shall be presented to our Courts by June 18 pursuant
to the procedure provided in § 2 of the MDP.

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IT IS FURTHER ORDERED that disputes arising during a
deposition are governed by our Order of May 8, 2015.

In the

event a dispute arises during the deposition that requires
immediate court intervention, including a dispute over the
extent to which the questions fall outside the scope of the
disclosed topics, the parties may call Judge O’Hara or, in his
absence, Judge Cote.

Dated: June 16, 2015

__/s/ Denise Cote _______________
United States District Judge

Dated: June 16, 2015

__/s/ George H. Wu________________
United States District Judge

Dated: June 16, 2015

___/s/ John W. Lungstrum__________
United States District Judge

Dated: June 16, 2015

___/s/ James P. O’Hara____________
United States Magistrate Judge

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